Ms. Santangelo appeared in court in May by herself, before hiring attorneys. After we were retained, we made a motion to dismiss the complaint for failure to allege any specific acts, dates, and times of unlawful copying, which is required in a copyright case. We made our motion, the RIAA served its opposition papers, and we served our reply papers, which is the normal sequence. (Copies of the May transcript, and of the motion, opposition, and reply papers, are catalogued at my blog Recording Industry vs the People)

On August 5th, the judge asked for and heard oral argument on the issues raised by the dismissal motion. I argued for the defendant. Timothy Congrove, of Shook Hardy & Bacon, a Kansas City, Missouri, firm best known for representing big tobacco companies in suits brought by lung cancer victims, argued the case for the RIAA. He literally 'phoned it in' -- i.e. he appeared by telephone.

The motion was fully briefed, and the last papers submitted to the court, on August 15th.

The surreply request is unusual because the normal rule is that the party bearing the affirmative burden of persuasion (in this instance Ms. Santangelo) gets to have the last word. The party making the motion bears the burden of persuading the court, and serves its motion papers. The opposing party serves its opposition papers. And then the movant gets the last word -- its reply papers.

I would say that asking for a second oral argument is unusual, because (a) in almost 31 years of working in litigation I've never heard of anyone doing it, and (b) the very asking for it is an admission that the first oral argument was lost.

One can only guess as to why plaintiff's lawyers are doing it. Apparently something happened after August 15th to convince the plaintiff's lawyers that (a) they are losing, and/or (b) the case is more important than they initially thought it was. Or perhaps they are doing it because they are hired guns and their client just ordered them to do it.

If they lose this case is their any chance that former victims can strike back at the RIAA for essentially forcing them to make settlements? (We all realize that many people have settled simply because they couldn't afford the risk of losing and in many cases couldn't afford to hire an attorney for legal advice so they had to go by what the RIAA told them.)

I'm not so sure it will completely derail their lawsuit campaign, but it will significantly hamper it. They'd have to get full and proper evidence to file a suit and that would require many court motions just to get the necessary logs. (And they may not be able to convince any court to force an ISP to turn over their logs without more concrete evidence up front.)

I really hope it does spell the end for them though. The sooner they get over trying to prop their failed business model up by legal action the sooner we can end up with a new system that, with luck, will fairly compensate the actual artists and get rid of all the industry fatcats that abuse those same artists now.

I think they have been bringing the cases without any evidence of any actual copyright infringement.

I think a dismissal by Judge McMahon will mean that they have to do a factual investigation first, and only sue people if they have some evidence that those people actually committed acts of copyright infringement.

In a civil trial, what would be fairly considered "evidence of actual copyright infringement" when it comes to online filesharing?

It seems to me that the RIAA could download a file themselves, then use that as evidence. But simply getting a list of file names, or (for example) an IP address from a bittorrent tracker, which might or might not indicate that any copyrighted material was exchanged, should be insufficient. Is that correct?

I'd say that if the riaa downloaded a file themselves, that would also be insufficient evidance since the riaa can legally copy the file they downloaded :p

In any case, i think someone should point out to them that none of their lawsuits are acctually legal... section 1008 of us copyright law... don't have the exact text but to me it reads something like 'no action may be take under this act for none commercial copying by a consumer'

That to me implies filesharing is legal, as its both non commercial and done by consumers.

Previous- "...I'd say that if the riaa downloaded a file themselves, that would also be insufficient evidance(sic) since the riaa can legally copy the file they downloaded :p"

Nope, It's not about copying, it's about distribution. Did the defendant have the requisite rights to distribute (i.e. the 'copy-right') the content? I would venture to guess no. This is assuming that they can PROVE when, where, etc.. the defendant violated the copyright.

As far as this motion, the Judge should toss it. I, however would file a motion pleading for the court to deny it, based on nobody ever having won an argument after Dad asked "Do I have to pull this car over?"

As far as this motion, the Judge should toss it. I, however would file a motion pleading for the court to deny it, based on nobody ever having won an argument after Dad asked "Do I have to pull this car over?"

I'm not sure what you mean by this. Do you mean that you'd oppose dismissal of the lawsuit? And I kind of missed the reference as to why...

Good thought on that "you can't prosecute people who do this without aims for profit" point. It was successfully used as a defense in a multi-multi-million dollar suit against a teenager about 5 years ago if I recall. Congress patched the loophole after that. I think the penalties are now either $10k or $100k per offense.

I am a business lawyer in New York City, practicing at Ray Beckerman, P.C.. The purpose of this site is to collect and share information about the wave of sham "copyright infringement" lawsuits started by four large record companies, and other areas of concern to digital online copyright law, and to internet law in general. -Ray Beckermanbeckermanlegal.com(Attorney Advertising)

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2." -Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove